Summary: The proposed regulations governing Detention and Correctional Facilities are largely good. Language about the regulations, applicability in private detention and correctional facilities needs clarification, and an exception to the integration mandate needs to be modified to align with the intent and purpose of the regulations..

Sec. 35.152 Detention and correctional facilities

Comments:

The new Sec. 35.132 is generally very good. Discrimination in detention and correctional facilities is rampant across the country. Prisoners and detainees have been hindered in their ability to litigate discrimination in detention and correctional facilities due to either the short period of time that they are detained, or the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e. As a result, detention and correctional facilities remain inaccessible.

While the commentary accompanying the proposed regulations is clear that the language in subsection (a), “through contracts or other arrangements,” refers to all situations where a public entity pays a private prison operator to house a public entity’s prisoners, a change to “through contracts or any other arrangement” would make this intention clear in the language of the regulations. In addition, clarification is needed to ensure these regulations apply to both juvenile facilities, and community corrections for adults and juveniles.

We have grave concerns that the language in subsection (b)(2), “Unless the public entity can demonstrate that it is appropriate to make an exception for a specific individual,” will be the exception that swallows the whole. While the intention of this section is to ensure that an individual with a disability who can be better served in a less integrated setting -- e.g. the Deaf inmate who can be housed with other Deaf inmates at a distant facility -- can legally be placed in that less integrated setting, we are concerned given the longstanding practices of many public entities to segregate, cluster, and warehouse prisoners and detainees with disabilities, that this exception will be used to justify the status quo.

We propose that the language be amended to read: “Unless the individual with a disability and the public entity agree that it is appropriate to make an exception for a specific individual, or the public entity can demonstrate that the individual with a disability poses a direct threat to the health or safety of self or others that cannot be eliminated by reasonable modifications.”

Without these changes, we are concerned that practices, such as assigning a more restrictive classification due to the mere existence of a disability will continue. For example, the City & County of Denver places inmates with disabilities in more restrictive classifications based solely upon the inmate’s disability. The mere existence of a disability, such as deafness, warrants administrative segregation, without further analysis of the inmate’s actual abilities or risks. The assignment to administrative segregation is based only on the basis of the disability label, without any individualized analysis of the safety risk that may or may not exist.

We support the alterations scheme proposed in the regulations. The alterations scheme balances the needs of facility administrators, cost considerations and needs of inmates with disabilities. This scheme will only succeed, however, in the context of a strong integration mandate.

Questions posed by DOJ

Question 45: Are the requirements for accessible cells in sections 232.2 and 232.3 of the 2004 ADAAG adequate to meet the needs of the aging inmate population in prisons? If not, should the percentage of cells required to have accessible features for individuals with mobility disabilities be greater and, if so, what is the appropriate percentage? Should the requirement be different for prisons than for other detention and correctional facilities?

We believe that the requirements for accessible cells in sections 232.2 and 232.3 of the 2004 ADAAG are not adequate to meet the needs of any prison population, let alone the aging prison population. The scoping (what, when and how many) in the 2004 ADAAG requires that 2% of cells across the entire facility, without regard for different program areas, classifications, or uses be accessible. Disability rights advocates recommend that scoping be increased to 5% or 7% overall, and that at least 2% of each type and use of cell be required to be accessible.

Currently, the 2004 ADAAG provides scoping for the entire facility. Disability rights advocates believe the scoping should be adjusted so that 2% of cells, but not less than one, should required for each program, classification, use or service area within each facility. Section 232.3 partially addresses this issue for special holding cells, but does not address this issue for all types of housing in detention and correctional facilities. While a police station with two holding cells, one female, and one male is required to make both cells accessible, the same is not true for a facility that may have, as an example, a block of 20 cells set aside for participants in a prison dog training program. Disability rights advocates believe that section 232.3 should be expanded to require both 2% scoping for each special holding cell, and that the scoping requirements in 2004 ADAAG Sec. 232.2.1 should be modified to require 2% scoping in each area, type, use and class of cells in a facility. If a correctional facility has separate areas for inmates in specific programs, each of those areas must have 2% but not less than one accessible cells. If a correctional facility has separate housing for different classifications, the 2% scoping should apply to each of those housing units. If the facility has shift areas, the 2% should be provided in both the shift areas, as well as in each housing area.

We believe, given the nature of the population in detention and correctional facilities, and current available statistics regarding the incidence of disability, the overall facility should have 5-7% of its cells be accessible to meet the needs of both an aging population, and the larger numbers of prisoners with mobility impairments.

Finally, the requirement of 2004 ADAAG Section 232.4 that medical facilities in detention and correctional facilities must comply with Section 223 should be expanded to apply to all medical facilities with detention and correctional facilities, regardless of licensure. For example, a prison system may have a facility that is the equivalent of a community long term care facility, however, because it is part of the prison system, it is not subject to other licensing procedures. ADAAG 223.3, scoping for Long Term Care facilities, only applies to licensed long term care facilities. Disability rights advocates believe that anytime a detention or correctional facility has a stand-alone program, or as a portion of a facility, a building that have elements addressed elsewhere in the 2004 ADAAG, that the scoping and design features of those elements apply to the detention and correctional facility.

These approaches will increase the numbers of accessible cells in a facility, better meeting the needs of needs of disabled inmates and detainees, and facilitating the integration require of Section 35.152.

Question 46: Should the Department establish a program accessibility requirement that public entities modify additional cells at a detention or correctional facility to incorporate the accessibility features needed by specific inmates with mobility disabilities when the number of cells required by sections 232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of their inmate population? Under this option, additional cells provided for inmates with mobility disabilities would not necessarily be required to comply with all requirements of section 807.2 of the 2004 ADAAG, so long as a cell had the mobility features needed by the inmate it housed.

We believe this is a very practical approach for meeting the needs of inmates with mobility impairments in both existing facilities, and newly constructed facilities. Unlike every other type of facility, inmates do not have the option of simply selecting a more accessible facility if they are not happy with the level of accessibility of their placement. If a hotel does not have enough roll-in showers, a person can simply go to another hotel. Prisoners do not have that option. Furthermore, prisoners can be housed for years, decades, and in many cases, for a lifetime. They should not be subjected to inaccessible conditions for their entire confinement because other people with disabilities got the accessible cells first. In many cases, every inmate will not need all the accessibility features required by the Standards. This approach allows public entities to meet the needs of inmates with disabilities in an expedient and cost effective manner.

We do have one concern with this approach. This approach relies on state and local government officials creating the accessibility in a timely manner. Our concern is during that period while the inmate waits for accessibility modifications to be made. In some circumstances, an inmate will be known to the system, and the facility will have an opportunity to plan for the inmate’s needs prior to arrival. In other circumstances, such as with pre-trial detainees, the inmate’s needs may not be known prior to the inmate’s arrival. We believe strong regulatory language can help to ensure that inmates are not experiencing long periods of inaccessibility while a state or local government makes modifications to a cell. Disability rights advocates believe that the regulations need to be modified to make it clear that Sec. 35.152(b) applies, even while waiting for accessibility modifications to be made. In addition, we believe the language should be amended to read: “Unless the individual with a disability and the public entity agree that it is appropriate to make an exception for a specific individual, or the public entity can demonstrate that the individual with a disability poses a direct threat to the health or safety of self or others that cannot be eliminated by reasonable modifications.”

Question 47: Please comment on whether the dispersal of accessible cells recommended in Advisory 232.2 of the 2004 ADAAG should be required.

We strongly believe that dispersion is essential, however we also believe as noted above, that scoping (what, when and how many) should be modified to require a percentage of accessible cells in each program, classification, use or service area within each facility be accessible to inmates with mobility impairments. Without dispersal of accessible cells, integration as mandated by Sec. 35.152 will be difficult if not impossible to accomplish.

Question 48: The Department is particularly interested in hearing from prison administrators and from the public about the potential effect of the assignment scheme proposed here on inmates and detainees who are deaf or who have other disabilities. Are there other, more appropriate tests to apply?

We acknowledge that in some circumstances the assignment scheme discussed is appropriate. However, we are concerned that it will become a mechanism to create unnecessary segregation. We believe two tests should be added to the regulations when determining whether to assign inmates to a less integrated facility. First, we believe assignments should be done only when the facility and the inmate agree. Some deaf inmates may prefer to be closer to family members than have better communication access. Other deaf inmates may prefer the reverse. Likewise, a pre-trial detainee who is a wheelchair user may prefer to be housed at a distant facility that is completely wheelchair accessible, while others may choose to remain close to their home so that they can better participate in preparing his or her defense.

Disability rights advocates have grave concerns that the language in subsection (b)(2), “Unless the public entity can demonstrate that it is appropriate to make an exception for a specific individual,” will be the exception that swallows the whole. While the intention of this section is to create an assignment scheme that will allow an individual with a disability who can be better served in a less integrated setting, to be served in that less integrated setting, we are concerned given the longstanding practices of many public entities to segregate, cluster, and warehouse prisoners and detainees, that this exception will be used to justify the status quo.

Disability rights advocates propose that the language be amended to read: “Unless the individual with a disability and the public entity agree that it is appropriate to make an exception for a specific individual, or the public entity can demonstrate that the individual with a disability poses a direct threat to the health or safety of self or others that cannot be eliminated by reasonable modifications.”

Without these changes, we are concerned that practices, such as assigning a more restrictive classification due to the mere existence of a disability will continue. For example, the City & County of Denver, places inmates with disabilities in more restrictive classifications based solely upon the inmate’s disability. The mere existence of a disability, such as deafness, warrants administrative segregation, without further analysis of the inmate’s actual abilities or risks. The assignment to administrative segregation is based only on the basis of the disability label, without any individualized analysis of the safety risk that may or may not exist.

We believe that in the absence of agreement among the facility and the inmate, that a direct threat analysis be used before placing unwilling inmates in less integrated settings.